Citation Nr: 0818353
Decision Date: 06/04/08 Archive Date: 06/12/08
DOCKET NO. 06-14 272A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an effective date prior to August 16, 1999
for a 100 percent schedular rating for chronic obstructive
pulmonary disease (COPD).
2. Entitlement to a total disability rating due to
individual unemployability (TDIU) for the period prior to
August 16, 1999.
ATTORNEY FOR THE BOARD
L. Jeng, Associate Counsel
INTRODUCTION
The veteran had active duty from June 1964 to January 1975.
This matter comes before the Board of Veterans' Appeals
(Board) from a May 2005 rating decision of a Department of
Veterans Affairs (VA) Regional Office (RO).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Review of the claims folder reflects that the veteran has not
been furnished proper Veterans Claims Assistance Act (VCAA)
notice with respect to his earlier effective date claims.
In November 2000, the President signed into law the VCAA,
which redefined VA's duty to assist, enhanced its duty to
notify a claimant as to the information and evidence
necessary to substantiate a claim, and eliminated the well-
grounded-claim requirement. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102,
3.156, 3.159, and 3.326 (2007) (regulations implementing the
VCAA). This change in the law is applicable to all claims
filed on or after the date of enactment of the VCAA, or filed
before the date of enactment and not yet final as of that
date. 38 U.S.C.A. § 5107 note (Effective and Applicability
Provisions) (West 2002).
The Act and the implementing regulations provide that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim, unless there is no reasonable
possibility that such assistance would aid in substantiating
the claim. VA is also required to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of this VCAA-duty-to-notify-notice, VA is required to
specifically inform the claimant which portion of the
information and evidence, if any, is to be provided by the
claimant and which portion, if any, VA will attempt to obtain
on behalf of the claimant. In Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006), the U.S. Court of Appeals for
Veterans Claims (Court) held that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim, including the degree of disability and the effective
date of an award.
VCAA letter dated in December 2004 is pertinent to the
veteran's increased rating claim for COPD and claim for TDIU.
While the May 2006 statement of the case included information
as to the degree of disability and the effective date of an
award, the claim was not re-adjudicated after this notice was
given. In Mayfield II, the Federal Circuit held that VCAA-
compliant notice may not be accomplished by aggregating
postdecisional documents from which a veteran might have been
able to glean what evidence was lacking at the time of the
initial adjudication. See Mayfield v. Nicholson, 444 F.3d
1328, 1333 (2006) (Mayfield II). The veteran should receive
complete VCAA notice prior to an adjudication of the issue.
See 38 C.F.R. § 3.159 (2007).
Accordingly, the case is REMANDED for the following action:
1. The RO should:
(a) Notify the veteran of the information and
evidence necessary to substantiate his claims of
entitlement to an effective date earlier than
August 16, 1999 for a 100 percent schedular
rating for COPD and a grant of TDIU.
(b) Notify the veteran of the information and
evidence he is responsible for providing,
(c) Notify the veteran of the information and
evidence VA will attempt to obtain, e.g., that
VA will make reasonable efforts to obtain
relevant records not in the custody of a Federal
department or agency and will make as many
requests as are necessary to obtain relevant
records from a Federal department or agency;
(d) Notify him that he should submit such evidence
or provide VA with the information necessary for
VA to obtain such evidence on his behalf;
(e) Request that the veteran provide any evidence
in his possession that pertains to his claims;
and
(f) Provide the veteran with an explanation as to
the information or evidence needed to establish
an earlier effective date for his claim.
2. The RO should readjudicate the issues of
entitlement to an earlier effective date for
COPD and TDIU. All applicable laws and
regulations should be considered. If the
benefit sought on appeal remains denied, the
veteran and his representative should be
provided with a supplemental statement of the
case and given the opportunity to respond
thereto.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).